When Congress Comes Calling A Primer on the Principles, Practices, and Pragmatics of Legislative Inquiry Morton Rosenberg Constitution Project Fellow WHEN CONGRESS COMES CALLING: A PRIMER ON THE PRINCIPLES, PRACTICES, AND PRAGMATICS OF LEGISLATIVE INQUIRY MORTON ROSENBERG CONSTITUTION PROJECT FELLOW The Constitution Project 1200 18th Street, NW Suite 1000 Washington, DC 20036 (202) 580-6920 (tel) (202) 580-6929 (fax) [email protected] www.constitutionproject.org Copyright © 2009 by the Constitution Project. All rights reserved. No part may be reproduced, stored in a retrieval system, or transmitted, in any form, or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the Constitution Project. For information about this report, or any other work of the Constitution Project, please visit our website at www.constitutionproject.org or e-mail us at [email protected]. When Congress Comes Calling: A Primer on the Principles, Practices, and Pragmatics of Legislative Inquiry TABLE OF CONTENTS Preface vii I Introduction: The Challenges to Effective Investigative Oversight 1 A. The Purposes and Powers of Congressional Oversight . 1 B. The Power of Congress Over Executive Branch Agencies . 2 C. Barriers to Effective Oversight . 3 D. How to Conduct Effective Oversight. 4 II The Powers and Tools Available to Congress for Conducting Investigative Oversight 7 A. Congress’ Power to Investigate. 7 1. The Breadth of the Investigatory Power. 7 2. The Limits of the Investigatory Power. 8 B. Congress’ Ability to Obtain Documents and Witness Testimony . 8 1. The Subpoena Power . 8 a. The Power to Issue a Subpoena. 8 b. The Permissible Scope of a Subpoena . 9 c. The Necessary Legislative Purpose for a Subpoena. 10 d. The Pertinency of the Subpoena to the Investigation . 10 2. Staff Deposition Authority . 11 a. Express Authorization of Deposition Authority is Necessary . 11 b. The Utility of Staff Depositions . 11 3. Congressional Grants of Immunity . 12 a. A Committee May Override a Witness’ Claim of Self-Incrimination Privilege . 12 b. How a Committee Grants Immunity . 12 c. Scope of the Immunity Granted . 12 d. Impact of Immunity Grants on Future Prosecutions . 13 e. Frequency of Issuance of Immunity Grants . 13 4. Special Investigatory Powers Authorized in Extraordinary Inquiries . 14 C. Enforcement of the Investigation Power . 14 1. Courts Have Recognized the Need for Effective Enforcement Mechanisms. 14 2. The Inherent Contempt Power . 14 a. The Source, Nature, and Objectives of Inherent Contempt . 14 b. Rights of a Person Cited for Contempt . 14 c. Fines as an Alternative to Imprisonment for Inherent Contempt. 15 d. Inherent Contempt Does Not Require Judicial Enforcement Assistance. 15 e. The Perceived Limitations of the Inherent Contempt Mechanism . 15 3. Statutory Criminal Contempt. 15 a. The Origin and Nature of the Criminal Contempt Statute . 15 b. Congressional Use of Criminal Contempt Against Executive Officials . 16 c. The Uncertainty Whether Executive Officials Are Subject to Inherent or Criminal Contempt Proceedings . 16 4. Civil Contempt . 16 a. In the Senate . 16 i. The Origins, Purposes, and Procedures of the Senate Civil Contempt Statute . 16 ii. The Benefits of a Civil Contempt Mechanism . 17 iii. The Senate Civil Contempt Mechanism Cannot be Used Against Executive Branch Officials . 17 The Constitution Project | iii Table of Contents b. In the House of Representatives . 17 i. Past House Resolutions Authorizing Special Committee Actions . 17 ii. Approval of House Resolution Authorizing Court Enforcement of a Committee Subpoena . 17 5. Alternatives to Contempt . 18 6. Perjury, False Statements, and Obstruction Prosecutions . 19 a. Testimony Under Oath . 19 b. Unsworn Statements. 19 c. Obstruction of a Congressional Proceeding . 19 III The Process of Conducting Investigative Oversight Proceedings 21 A. The Nature of an Investigative Hearing . .21 B. Jurisdiction and Authority . 21 C. Initiation of an Investigation . .22 1. Committees and Chairpersons Have Broad Authority to Commence Proceedings. 22 2. Preliminary Inquiries Can Be Protective of Important Evidence . 22 D. Rules Applicable to Hearings. .23 1. Committees Must Adopt and Publish Their Rules of Procedure . 23 2. Advance Notice of Hearings Must Be Published . 23 3. Quorum Requirements for Certain Investigative Actions . 23 4. Closed Sessions. 23 5. Audio and Visual Coverage of Open Hearings . 23 E. Conduct of Hearings . .23 1. Opening Procedures . 23 2. Rights of Witnesses and the Role of Counsel . 24 3. Effect on Investigative Proceedings of a Final Adjournment of a House at the End of a Legislative Session . 24 IV Constitutional Testimonial Privileges of Witnesses 25 A. Executive Privilege. .25 1. The Presidential Communication Privilege: A Summary of the State of the Law . 25 2. Evolution of the Law of Executive Privilege and Helpful Guidance from the Cases . 26 a. Nixon and Post-Watergate Rulings. 26 b. Issues Unresolved by Nixon and the Post-Watergate Cases . 26 c. The Narrowing of the Privilege Through Court Decisions in Espy, Judicial Watch, and Miers . 27 i. Espy . 27 ii..